Citation Nr: 1419293
Decision Date: 05/01/14 Archive Date: 05/16/14
DOCKET NO. 10-44 659 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Francis, Counsel
INTRODUCTION
The Veteran served on active duty from November 1962 to November 1967.
This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee.
In an October 2010 substantive appeal, the Veteran requested a Board hearing by videoconference from the RO. A notice of a July 2013 hearing was mailed to the Veteran at his address of record but was returned by the U.S. Postal Service as undeliverable. There is no information in the file from the Veteran or his representative regarding a change of address. The Veteran did not appear for the hearing.
The Veterans Benefits Management System and Virtual VA paperless claims processing system do not contain additional evidence relevant to this appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required.
REMAND
A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).
As a preliminary matter, the RO must employ available sources of information including the Veteran's representative and current disability compensation payment sources to determine the Veteran's current address.
The RO received the Veteran's claim for service connection for bilateral hearing loss in January 1994, prior to the enactment of the notice and assistance requirements in November 2000. Although the RO provided notices in August 2008 and February 2009, the notices addressed the criteria for an increased rating for another disability. The Veteran did submit relevant evidence in June 2009 and February 2010. Nevertheless, when the Veteran's correct address has been determined, a notice informing the Veteran of all the elements for service connection for bilateral hearing loss and the Veteran's and VA's respective responsibilities to obtain relevant evidence is required to fulfill VA's notice and assistance responsibilities.
As the Veteran did not receive notice for the Board hearing, when the correct address is available, the Veteran must be provided another opportunity for a Board videoconference hearing if still desired.
In correspondence in August 2010, the Veteran's representative noted that the Veteran was receiving on-going treatment for hearing loss at the VA Medical Center in Nashville, Tennessee. Except for an examination report submitted by the Veteran, there are no records of care at this facility in the file and none from other facilities since July 2008. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); see Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the RO should request VA medical records pertaining to the veteran from the VA Medical Center in Nashville from July 2008 to the present.
Finally, service personnel and treatment records show that the Veteran's military duties were consistent with exposure to artillery fire and that a discharge examination showed mild abnormal hearing loss in the left ear at 4000 Hz. As noted above, the Veteran submitted reports of private and VA audiometric testing performed in November 1999, May 2009, and February 2010. Although the test results showed the Veteran's level of hearing acuity, none of the examiners provided an opinion whether the current hearing deficits were caused or aggravated by exposure to the artillery fire or by other causes after service including recreational or occupational noise exposure or aging. The Veteran failed to appear for a VA examination in March 2012 because he was travelling out of the country and did not receive notice. He did not appear for an examination in February 2013 with no good cause shown.
VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).
In this case, the evidence of record establishes the Veteran's level of hearing acuity, the exposure to high levels of noise in service, and provides credible lay evidence to indicate a relationship to the noise exposure. Therefore, a medical opinion on the etiology of the disorder based on a record without another physical examination is necessary to decide the claim. 38 C.F.R. § 3.159 (c) (2013).
Accordingly, the case is REMANDED for the following action:
1. Determine the Veteran's correct current mailing address. Provide the Veteran with notice addressing the criteria for service connection for bilateral hearing loss and evidence collection responsibilities. Request from the Veteran clarification on his desire for a Board videoconference hearing, and if so desired, schedule a hearing at the next available opportunity.
2. Request all records of VA outpatient medical care at the VA Medical Center and associated clinics in Nashville, Tennessee, and associate any records received with the paper or electronic claims files.
3. Provide the claims file and access to the electronic file to a VA audiologist. Request that the audiologist review the claims file including the service records, post-service treatment records, and private and VA audiometric examinations in November 1999, May 2009, and February 2010, and note the review in a written report.
Request that the audiologist provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's discharge hearing test represented abnormal hearing in service and if so, whether the abnormality continued after service to the current level of deficit, or whether the current deficits were caused or aggravated by military noise exposure or any other aspect of service. A complete rationale must be provided for all opinions.
4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim for service connection for bilateral hearing loss. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative. After an adequate opportunity to respond, return the appeal to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).